Apple has adopted new tactics in its patent war against the handheld industry. Last summer, Apple has transferred patents to the patent troll Digitude Innovations, using a shell company operated by Digitude's primary investor, Altitude Capital Partners. In December, Digitude filed suit with the International Trade Commission alleging patent infringement by almost every mobile manufacturers except Apple. (pdf filing)

Digitude has filed suit against all major Android manufacturers, including HTC, LG, Motorola, Samsung, Amazon and Sony, as well as RIM and Nokia, who don't make Android phones.

Apple has previously fought their patent cases openly, but they are hardly the first to employ patent trolls against competitors. Microsoft famously backed SCO in patent trolling Linux for the previous decade.

A few recent patent war stories : Motorola Mobility won the first round against Apple in their German patent fight, last Friday. Apple recently lost their Australian case against Samsung. Apple settled their previous patent struggle with Nokia this summer, agreeing to license some Nokia amounts.

I thnk it sucks, but seems to be the way the game is played. Apple would get sued whether they are suing or not. It's the Prisoner's Dilemma.posted by seanmpuckett at 7:45 AM on December 11, 2011 [4 favorites]

The way to end patent trolling is to stop making patents transferable. Inventors should be able to license patents, and that's all. There's nothing in the Copyright Clause that implies that patents should be transferable, and an argument can be made that it impedes innovation. Inventors should be able to profit from their inventions. Third parties should not be allowed to profit from other people's inventions.posted by 1970s Antihero at 7:58 AM on December 11, 2011 [15 favorites]

I wish I knew more about IP law, because after reading this patent, I wonder how it was ever deemed non-obvious by the USPTO. It's essentially performing a Remote Procedure Call with a version packed in the message. This is stupidly trivial.posted by hanoixan at 8:06 AM on December 11, 2011 [2 favorites]

While it's strange they're going via a third party, one could almost imagine that the deal was something along the lines of "Hey Apple, we'll let you license all our patents for free, so we'll never take up arms against you and make it harder for the other guys too too, just give us that juicy one, everyone's a winner!".

The particularly sad part isn't these companies fighting against one another, it's that this massive patent war is preventing any small players entering the market, the cost for entry is just too high. We are likely missing out on the next big thing that will the iPhone 4S look quaint in comparison.posted by Static Vagabond at 8:06 AM on December 11, 2011 [1 favorite]

The way to end patent trolling is to stop making patents transferable

First off, that wouldn't end patent trolling. It would just meant that the patent trolls would front the cost of litigation for the inventor, who would be the named party on the suit but otherwise nothing would change.

Second, it would mean that every inventor had to deal with the hassle of negotiating and maintaining license agreements rather than selling the patent rights to a company better poised to commercialize a given invention. Not every inventor also wants to be a small business owner.

Third, as a practical matter it's not going to happen. The TRIPS treaty requires that patents be transferrable, and extricating ourselves from TRIPS is beyond unlikely.

There's nothing in the Copyright Clause that implies that patents should be transferable

There's also nothing implying that they shouldn't.

Inventors should be able to profit from their inventions.

Except by selling the patent rights, according to your theory.

Third parties should not be allowed to profit from other people's inventions.

I've argued for copyrights held by the original human creators, not organizations, should receive double duration, after reducing corporate held copyrights to some reasonable timeframe like 5 years of course.

I doubt that non-transferable patents make sense though, well patents were always intended to protect the investors, not the inventor. A priori, you'd simply wrap every patent in a "special purpose vehicle/entity" who's stock you'd lease to the patent troll.

Apple would get sued whether they are suing or not. It's the Prisoner's Dilemma.

Yet another affirmation of my belief that the collective problems of humanity are rooted in its inability to maximize results under any flavor of the Prisoner's Delimma.posted by 3FLryan at 8:19 AM on December 11, 2011 [1 favorite]

it's that this massive patent war is preventing any small players entering the market, the cost for entry is just too high. We are likely missing out on the next big thing that will the iPhone 4S look quaint in comparison.

To be fair, there are tons of other startup costs that make it difficult for new players to enter the market: regulatory approval, manufacturing capital, contracts with the various carriers, etc.

In fact, arguably patents make it easier for a small player to enter the market. If a startup has a valuable patent (e.g. something everybody wants to use), then that gives the startup the leverage needed to either negotiate a cross-licensing deal with everyone or get bought up by one of the existing players for a tidy sum. Without a patent the existing players will just copy the technology and the startup will never have a chance to get off the ground (there are exceptions for technologies that are difficult to copy, of course).posted by jedicus at 8:21 AM on December 11, 2011

jedicus, every time we talk about patents on Metafilter you sound like such an apologist for the status quo! You know as well as we do that small players very seldom can afford to get and then prosecute a patent as a way to enter a new market. What's the time to even get a patent granted now in the US, 4–5 years? Longer than the lifespan of most startups. Anyway, I know you're thoughtful and knowledgable, and thanks for answering my callout in a previous discussion on MeFi with your opinion on what would make reasonable patent reform.

hanoixan, the obviousness test is largely ineffective in US patents. "Well known technique X applied in context Y" is often considered non-obvious and novel enough to get a valid patent, even if it seems clear to us it shouldn't be. Also with patents the most important thing is getting the patent issued, which is a relatively low bar. Once you have the patent in hand you can then sue companies with it and it's up to a bunch of lawyers and a jury of your twelve East Texas peers to decide if the patent is valid or not. Patents are rarely invalidated in court; generally parties settle before any decision is reached. (But after years and millions of dollars are wasted).

"At a time when our future affluence depends so heavily on innovation, we have drifted toward a patent regime that not only fails to fulfil its justifying function, to incentivise innovation, but actively impedes innovation."
- The Economist, Patents against prosperity.posted by jeffburdges at 8:28 AM on December 11, 2011 [5 favorites]

There needs to be a reform of the licensing process so that compints about infringement can be easily settled and royalties can be fairly assigned. It is very difficult for inventors to get fairly compensated for their work. Trolls wouldn't exist if patents worked more like stock photos.posted by humanfont at 8:34 AM on December 11, 2011

As long as the patent system allows a patent holder to exercise complete control over a market with zero oversight, it's going to be fundamentally broken.posted by phooky at 8:39 AM on December 11, 2011

Is there any any prisoners dilemma here for Apple? Not afaik.

Apple had already inked the deal with Digitude when Forbes crowed about Digitude this summer. I donno if Digitude owns any non-Apple patents, but even so, Apple fights off patent trolls all the time, just like all big companies.

Apple probably arranged backing this patent troll once they witnessed the patent war generating bad publicity and/or acknowledged the danger posted by counter suits from companies like Nokia and Motorola.posted by jeffburdges at 8:44 AM on December 11, 2011

Lawyers need to be first against the wall and all that, but there's something to the fact that damn-near every phone and tablet released since the iPhone looks an awful lot like a knockoff of an Apple product. I have a hard time imagining we'd have this universe of black glass slates with grids of candy-colored square icons if Apple hadn't pushed entire industries that direction back in 2007.

That said, this is the wrong way to handle it, and the patent "industry" is a slimy cesspool desperately in need of reform, yup.

The recent Google and Microsoft gobbling of Nortel's patents is another massive play against survival instinct in this insane new world. And the way one of the first side-effects means Android makers are paying royalties to Microsoft for every Android phone sold... that's just weird.

At the risk of putting my own eye out by swinging a very broad brush, it seems to me that patents have become to technology something like derivatives became to finance:

Phantoms made of nothing but smoke that distract tech companies away from what they're actually 'supposed' to be doing to succeed. Because these distractions have huge numbers of real dollars attached, though, it looks like success on balance sheets for awhile.

Then later, the fallout from all this misplaced priority endangers actual progress and prosperity.posted by rokusan at 8:51 AM on December 11, 2011 [4 favorites]

every time we talk about patents on Metafilter you sound like such an apologist for the status quo!

The foundation of the current US patent system (the 1952 Patent Act) was a compromise against decades of steadily weakening patents in the United States. The same is true of the creation of the Federal Circuit. Before the Federal Circuit there were regional circuits in which the appellate judges openly stated that there was no such thing as a valid patent in their circuit. So the status quo is in many ways already the product of balancing various interests. The point I often try to make is that there are no easy answers here. Many smart people on every side of the issue have spent literally centuries thinking about how to optimize the patent system.

For example, much of modern US innovation and competition policy came out of the Advisory Committee on Industrial Innovation, which was started by the Carter administration and continued into the Reagan administration. It also explicitly took into account input from labor, environmental, and public interest groups. The committee wrestled with many of the same issues that we're discussing today, and I think it's a shame that its Final Report isn't more widely read because it shows that modern innovation policy is, by and large, the product of a bipartisan, "big tent" consensus.

I only come across as an apologist because I tend to shoot down "simple, easy, and wrong" solutions like "patents shouldn't be transferable." But I don't actually like the status quo. There are lots of things I would tweak about the patent system, and many of the tweaks I favor are contrary to the interests of patent holders, as discussed in the comment you linked.

You know as well as we do that small players very seldom can afford to get and then prosecute a patent as a way to enter a new market. What's the time to even get a patent granted now in the US, 4–5 years? Longer than the lifespan of most startups.

Getting a single US patent is not super-expensive. Something like $20-30k, depending on its complexity, and that's if you hire a large law firm. And filing a provisional application buys you a year of dithering time for a fraction of that. Frankly, a smart VC will insist on patenting everything available anyway because the patents can be sold if the company fails. If a startup fails before it has tangible assets, having a patent portfolio can be a good way to recoup some of the investment. That's how a lot of patent trolls get their patents: they buy them from failed companies and then try to make money by licensing.

And you don't need an issued patent in order to have leverage. For one thing, you can sue for infringement dating back to when the application was filed, so long as the infringer was on notice of the application's existence. Also, if the claims are currently being infringed you can apply to have the examination sped up. There are also things like paying for accelerated examination and the eventually-forthcoming "tier 1" program.posted by jedicus at 8:58 AM on December 11, 2011 [10 favorites]

rokusan The recent Google and Microsoft gobbling of Nortel's patents

It was Apple and MS that bought the Nortel patents... not Google.posted by SAC at 9:00 AM on December 11, 2011

In fact, arguably patents make it easier for a small player to enter the market. If a startup has a valuable patent (e.g. something everybody wants to use), then that gives the startup the leverage needed to either negotiate a cross-licensing deal with everyone or get bought up by one of the existing players for a tidy sum. Without a patent the existing players will just copy the technology and the startup will never have a chance to get off the ground (there are exceptions for technologies that are difficult to copy, of course).

The problem with patents is that the big guys already have patents for simple things that the little guy needs to use as prerequisites for his idea. At least, as a programmer that's the kind of problem I see. I can't afford to make sure that there isn't a patent on this particular kind of linked list before I create it (and yes, there are patents on specific schemes for laying out linked lists), because it's part of my job that I will be coming up with new data structures and new ways to use them all the fucking time. It would be unbelievably onerous to have to make sure that every one of those algorithms and data structures was actually free of patent encumbrance, and as a result I wouldn't actually be able to get around to, you know, finishing and publishing my fabulous new product.posted by Jpfed at 9:00 AM on December 11, 2011 [2 favorites]

Sorry, you're right SAC, I mixed up the Nortel and Motorola patent orgies.

I also just reversed 'former' and 'latter' in that comment. It's late, I need to go to bed. :)posted by rokusan at 9:04 AM on December 11, 2011

The problem with patents is that the big guys already have patents for simple things that the little guy needs to use as prerequisites for his idea.

So the key problem seems to be one of minimizing transaction cost. For example, you can buy a $300 computer that embodies literally thousands of patents owned by dozens of companies, yet you don't have to negotiate licenses with anybody. So it's clearly possible to keep the transaction cost of acquiring a patent license very low, from the end user's point of view. A big part of the research project that I work for is figuring out how to keep these transaction costs low so that innovators are paid while downstream research isn't disrupted.

As far as software patents go in general: I could go on for a while about ways to reduce the number and improve the quality of software patents, without categorically denying patentability, but it's a speech I've given on MeFi numerous times, so I won't repeat it here.posted by jedicus at 9:11 AM on December 11, 2011

a smart VC will insist on patenting everything available anyway because the patents can be sold if the company fails

Yes, but that creates a tax on innovation for the next company. The VC may recoup some modest value; let's say $1 million / patent. But that's small change compared to the $100m+ payout they are in the startup investment game for.

A real-world example of this is discussed in last weeks' Economist, in this profile of David Gelernter. Everyone agrees that Gelertner is a true visionary and his failed startup Mirror Worlds was a brilliant, innovative company. Their work meets the very definition of novel, useful, non-obvious. But is it good for anyone that their company could fail in 2004, then the patents be bought in 2008 by a hedge fund who then goes and sues Apple for infringing? And that suit takes 2 years to reach a decision ($625.5m awarded by the good people of Tyler, TX), and now it's tied up for years more in appeals?

Well, it's good for a few investors and lawyers. It wasn't good for the actual inventors or initial investors. And it's terrible for innovation. There are great ideas in Mirror Worlds: timelines, searches of archived data, user interface. Now those ideas are tied up for 20 years before some company can work on them without the fear of being wiped out by a patent lawsuit.

I'm pretty far afield of the original post. Which is that Apple has been caught playing the same patent game in the market that Microsoft, etc do. And they tried to hide it, and have been caught. I'm disappointed of course, but not surprised. Apple has always been pretty aggressive about intellectual property.posted by Nelson at 9:28 AM on December 11, 2011 [2 favorites]

So the key problem seems to be one of minimizing transaction cost

What nonsense. If I have a clever innovation that makes a better word processor, but Microsoft holds a bunch of broad and difficult to circumnavigate patents in that area, I don't think it's transaction costs so much as Microsoft's strategic ability to hold up my product that would affect the licensing price.posted by ~ at 9:32 AM on December 11, 2011

Well, it's good for a few investors and lawyers. It wasn't good for the actual inventors or initial investors.

Tilde points out my reflex reaction: Microsoft (or any Big Player) would probably be much more interested in using their patent arsenal as a means of simply suppressing, squishing or co-opting any innovation from a small player, rather than caring one whit about collecting "easy transactional costs" from them.

Ethical or not, that's exactly the advantage of being a Big Player, and it's been a recurring theme of the software industry in the US since the 70's, right? (Heck, I'm sure if Rockefeller or Ford had such a robust system available, they would have squeezed every small player with it, too.)

Real, significant patent reform would put the empowerment of the small innovator first, and of the big corporations and their weaponized patent libraries last... but this will never ever ever ever happen, given the corporatist/lobbyist universe we inhabit. It would require a complete economic collapse and a rebuilt world economy.posted by rokusan at 9:52 AM on December 11, 2011

If we had actual experts reviewing software patents, less of an incentive for any vaguely worded patent to sail through the patent office, and working examples of software published in patents, maybe software patent quality would improve to the point where I don't hate them. As it is now, every software patent I look at after these kind of stories come out is junk.

For example, they're suing over this patent. It seems to me like a wrapper around RPC (although the patent is difficult to read -- surprise!). They don't describe a new invention, they describe a software system that passes RPC messages around with a version tag. No one in 1996 would have found that novel. The CORBA spec was out in 1992.posted by demiurge at 9:56 AM on December 11, 2011 [1 favorite]

Yeah, demiurge, that is the same reaction I have when reading almost any software patent: Are you fucking serious? THIS is patentable?

I have always seen it as a sort of a fuck-you dare: whichever side can afford the lawsuit wins by default. Objective achieved.posted by rokusan at 9:58 AM on December 11, 2011 [2 favorites]

I believe large companies have kept their patent threats against smaller rivals somewhat concealed mostly to avoid bad public relations, ala saying "our patent portfolio offers your product better protection" during an acquisition discussion, i.e. "we could obliterate you if we wanted". We're witnessing that change with Microsoft's backing of SCO and Apple's backing of Digitude Innovations however because obfuscating lawsuits lets big boys soften up their small acquisition targets or rivals first without creating as much ill will.posted by jeffburdges at 10:19 AM on December 11, 2011 [1 favorite]

The foundation of the current US patent system (the 1952 Patent Act) was a compromise against decades of steadily weakening patents in the United States. The same is true of the creation of the Federal Circuit. Before the Federal Circuit there were regional circuits in which the appellate judges openly stated that there was no such thing as a valid patent in their circuit.

From where I'm sitting, that would be better than what we have now!

So the status quo is in many ways already the product of balancing various interests. The point I often try to make is that there are no easy answers here. Many smart people on every side of the issue have spent literally centuries thinking about how to optimize the patent system.

I only come across as an apologist because I tend to shoot down "simple, easy, and wrong" solutions like "patents shouldn't be transferable."

Then shoot these down, as if the can be argued against I'd sure like to see it:
Business methods shouldn't be patentable.
The bar to granting patents should be much higher than it is.
Software should not be patentable, period.
Patent terms should be shortened, and as the rate of technological innovation increases, should probably be made even shorter over time.

Tech companies should be the first in line to lobby for strong patent reform, but instead they're all circling their wagons, building their own patent portfolios to use against others. It's only a matter of time until someone manages to slip through a patent that affects almost everyone.

(I come from that age of the internet that still remembers clearly that damn Unisys GIF patent. The fact that this kind of thing is still going on infuriates me.)

Frankly, a smart VC will insist on patenting everything available anyway because the patents can be sold if the company fails. If a startup fails before it has tangible assets, having a patent portfolio can be a good way to recoup some of the investment.

That's arguing that patents help encourage startups because they can make money crapping on the world if they go out of business. Well, nothings stopping them from crapping on the world even if they don't go out of business.posted by JHarris at 10:23 AM on December 11, 2011 [2 favorites]

The way to end patent trolling is to stop making patents transferable.

The way to end patent trolling is three-fold:

(1) Hire enough and skilled enough examiners to make realistic assessments of whether something is innovative or nonobvious enough to merit a patent.

(2) Patents for obvious things are treated as bad-faith. If you submit a patent that is rejected for being too obvious, two randomly-selected patents ultimately owned by the submitter (which is the firm or inventer highest in the identifiable chain of ownership) are eliminated.

(3) A title registry for patents so ownership is clear. Every year some number of randomly-selected patents are audited by simply mailing a "If you want to keep your patent, mail this back" to the listed owner's address. Ones that fail are eliminated.posted by ROU_Xenophobe at 11:18 AM on December 11, 2011 [1 favorite]

I take that back. Obvious submissions cost you 2^(n-1) patents for each violation.posted by ROU_Xenophobe at 11:25 AM on December 11, 2011

It seems to me that the 'lack of examiner' issue is a red herring. For example, in software, the Patent Office just clearly has a different notion of obviousness then experts in the field. I just don't think hiring more people with those same notions will change things.

Since the Patent Office is following (or very firmly believes that they are) the law, it is the law that needs to be changed.posted by PissOnYourParade at 11:43 AM on December 11, 2011

*BZZZT* None may alter what the sacred Machine God hath given us, may the hereteks be burnt upon the fires of the holy... Patent Office? *BZZZT*posted by Slackermagee at 12:10 PM on December 11, 2011

Price them differently? Is there anything comparable where price is determined by experts or some type of algorithm?posted by ~ at 12:12 PM on December 11, 2011

It took about 20 years for Microsoft to go from trying to sue competitors out of business (as well as monopolistic business practices) to where they are now : in decline and unable to innovate . I think what we saw for Microsoft (and earlier for IBM) is a standard evolution for profit-at-all-costs type of businesses. Apple just signaled it's first death knell.posted by Poet_Lariat at 12:33 PM on December 11, 2011

(1) Hire enough and skilled enough examiners to make realistic assessments of whether something is innovative or nonobvious enough to merit a patent.

This would not stop high quality patents from being issued to patent trolls. Just because a patent troll owns a patent does not necessarily mean that the patent is low quality.

(2) Patents for obvious things are treated as bad-faith. If you submit a patent that is rejected for being too obvious, two randomly-selected patents ultimately owned by the submitter (which is the firm or inventer highest in the identifiable chain of ownership) are eliminated.

This is just a horrible idea. Even the most thorough prior art search done before a patent application is filed cannot guarantee that every piece of relevant prior art will be found, not can every obviousness rejection be anticipated. Sometimes examiners do make some really wacky obviousness rejections.

(3) A title registry for patents so ownership is clear. Every year some number of randomly-selected patents are audited by simply mailing a "If you want to keep your patent, mail this back" to the listed owner's address. Ones that fail are eliminated.

Maintenance fees already serve the exact same purpose.posted by gyc at 12:38 PM on December 11, 2011

Poet_Lariat: "It took about 20 years for Microsoft to go from trying to sue competitors out of business (as well as monopolistic business practices) to where they are now : in decline and unable to innovate . I think what we saw for Microsoft (and earlier for IBM) is a standard evolution for profit-at-all-costs type of businesses. Apple just signaled it's first death knell."

Lawyers need to be first against the wall and all that, but there's something to the fact that damn-near every phone and tablet released since the iPhone looks an awful lot like a knockoff of an Apple product. I have a hard time imagining we'd have this universe of black glass slates with grids of candy-colored square icons if Apple hadn't pushed entire industries that direction back in 2007.

I have a hard time seeing all these lawsuits happening, if it wasn't for the Samsungs, HTCs, Googles, etc. copying the design and function of iPhones and iPads. This situation didn't just happen out of a vacuum or fit of pique.posted by Blazecock Pileon at 1:01 PM on December 11, 2011

The competition with Google has forced Apple to continue innovating (and vice-versa); would you really prefer a world where Apple was able to lock out all competition through patents?posted by Pyry at 1:16 PM on December 11, 2011 [1 favorite]

The competition with Google has forced Apple to continue innovating (and vice-versa); would you really prefer a world where Apple was able to lock out all competition through patents?

Making an iPhone copy is not exactly innovating. If anything Windows Phone 7 with its Metro UI is a much better example of a competitor that took some inspiration from the iPhone but is going down its own path.posted by gyc at 1:28 PM on December 11, 2011 [1 favorite]

The major problems with the patent system are the imposition of an up-front cost, being for licensing fees and also for negotiating licensing fees (which may be fruitless). Compulsory licensing at a fixed percentage of finalized gross profit would solve that issue. The other major problem is inactivity, ie the troll practice of sitting under the patent doing nothing with it until another entity attempts to cross the bridge. If you can't turn a profit on your patent within a year of filing for it, unless exceptional circumstances exist, your patent is probably bogus. In any case compulsory licensing will give you that profit by allowing innovators to profit as well.posted by aeschenkarnos at 1:36 PM on December 11, 2011

I have a hard time seeing all these lawsuits happening, if it wasn't for the Samsungs, HTCs, Googles, etc. copying the design and function of iPhones and iPads.

There are plenty of features that Android incorporated first and iOS picked up later, like the drop down notification bar, task switching using the home button and OTA updates. Should Google sue? No because competition is good and causes everyone try to leap-frog the other guy's last release with their next release.posted by octothorpe at 1:36 PM on December 11, 2011 [3 favorites]

Price them differently? Is there anything comparable where price is determined by experts or some type of algorithm?

As aeschenkarnos suggests, a compulsory licensing system tries to solve this problem. It enabled music radio, for example, by allowing stations to play music and then pay ASCAP/BMI a fixed fee (which is then theoretically passed on to the copyrights-holders and perhaps even to the artist). The essential bit is that the copyright-holders don't pick and choose who gets to play their music; anyone who pays the fixed fee can play. It's less common in patent licensing, though, and according to that Wikipedia article TRIPS includes some preëmptive prohibitions on compulsory licensing for patents.posted by hattifattener at 2:08 PM on December 11, 2011 [1 favorite]

I PATENTED THE NEW YORKER UMLAUT GIVE ME BUXposted by JHarris at 2:44 PM on December 11, 2011

I don't blame them, but I think it really sucks and I won't own a single Apple product aside from my dated apple+ certification.

What nonsense. If I have a clever innovation that makes a better word processor, but Microsoft holds a bunch of broad and difficult to circumnavigate patents in that area, I don't think it's transaction costs so much as Microsoft's strategic ability to hold up my product that would affect the licensing price.

Microsoft is a bad example. It very rarely files patent suits and even then typically only because the company refused to take a license (e.g. for the FAT long file name patent).

Then shoot these down, as if they can be argued against I'd sure like to see it:
Business methods shouldn't be patentable.
The bar to granting patents should be much higher than it is.
Software should not be patentable, period.
Patent terms should be shortened, and as the rate of technological innovation increases, should probably be made even shorter over time.

First you have to define business method in a way that isn't over-inclusive or under-inclusive and cannot be easily gamed. Bear in mind that all patents are, at heart, business method patents. Consider a patent on a drug. Effectively it is a patent on "a method of doing business, comprising making, selling, using, or importing drug X." What are commonly called business method patents are typically financial methods. I'm no fan of big finance, but I'd much rather their methods were disclosed to the public through a patent than kept as trade secrets.

I agree that the bar for patentability should be higher and the presumption of validity should be eliminated. I'm all for tighter written description and enablement rules. I'm all for giving the Patent Office more resources to conduct more thorough examinations and eliminate the multi-year backlag. I'm also all for fixing the Patent Office's terrible retention rate, which contributes significantly to the low-quality patents.

First you have to define what software patents are in a way that isn't over-inclusive or under-inclusive and cannot be easily gamed. Bear in mind that all kinds of inventions have a computer or software involved at some point, so it's a tricky proposition.

Shortening the patent term would help less than you think. Patent owners would simply increase licensing costs to compensate for the shorter period of exclusivity. And there's not a lot of solid evidence that patents hinder downstream research or significantly slow innovation. At least in academic biotech research there's affirmative evidence that it doesn't.

A title registry for patents so ownership is clear.

Not only do maintenance fees serve that purpose, but there is such a registry already, and while assignments are not legally required to be recorded, there are significant legal benefits to doing so and negative legal consequences for failing to do so. Maybe you are referring to the problems with having a web of shell companies designed to hide the real party in interest?posted by jedicus at 2:57 PM on December 11, 2011

DON'T BLAME ME PATENT OFFICE FAILED AT DUE PROCESSposted by JHarris at 2:58 PM on December 11, 2011

How can it be possible to not blame them and think they acted in a sucky way? Only if the system itself is rigged to create perverse incentives.

What I hate is when people strongly state that, because the terrible thing being discussed was not illegal, ha ha win. Let's call them enablers. The proper reaction to that is that the law should be changed.

Then, what I hate even more is people saying the law can't be changed, because it's too hard duh, but also it would create problems X, Y and Z. Let's call them obstructors. The default reaction to that is that, hold on, let's think about this. Returning the ball to the enablers.

Between the enablers and obstructors, nothing ever seems to get fixed. The solution to this is either nuance, but that tends to be a degraded currency these days, or the strong man stepping in and fixing things for us, which has its own not-inconsiderable drawbacks.posted by JHarris at 3:04 PM on December 11, 2011

Umm, compulsory licensing systems for copyright usually result in independent musicians paying the local MafiAA for the right to stream their own content.

At best, a compulsory licensing system for patents would institutionalize this tax on innovation, i.e. startups pay rent to participate in an industry.

> Third parties should not be allowed to profit from other people's inventions.

Except by licensing the patent, according to your theory.

Pardon me for my language not being precise enough; what I meant was that third parties should not be allowed to profit from having the exclusive rights to other people's discoveries.posted by 1970s Antihero at 4:28 PM on December 11, 2011

Techworld.com.au has a better article about the injunction against Apple. Basically, the court prefers the injunction wait on an appeal attempt by Apple, but denied an outright stay, instead saying they'll enforce it immediately if Motorola must post a €100M bond.posted by jeffburdges at 8:32 PM on December 11, 2011

Maybe you are referring to the problems with having a web of shell companies designed to hide the real party in interest?

Yes, that. A registry of the actual party in interest.

Even the most thorough prior art search done before a patent application is filed cannot guarantee that every piece of relevant prior art will be found, not can every obviousness rejection be anticipated. Sometimes examiners do make some really wacky obviousness rejections.

*shrug* Okay. So be confident enough in the nonobviousness of your proposed patent to take the chance, or don't file. Clearly we are not facing a problem in the software world of too few patents being filed.posted by ROU_Xenophobe at 9:45 PM on December 11, 2011

Shortening the patent term would help less than you think. Patent owners would simply increase licensing costs to compensate for the shorter period of exclusivity. And there's not a lot of solid evidence that patents hinder downstream research or significantly slow innovation. At least in academic biotech research there's affirmative evidence that it doesn't.

So be confident enough in the nonobviousness of your proposed patent to take the chance, or don't file.

Filing a patent application has a not-insignificant upfront cost, which in fact puts it already out of the reach of most individuals. Of course most inventors are extremely confident in the non obviousness of their applications: quite an important part of a (good) patent professional's job consists in injecting a dose of reality in their expectations (and this applies for large corporations almost as much as it does for backyard inventors).

Apart from that, unlike novelty, obviousness is an extremely subjective matter. A feature of the human mind is that we tend to see things as "obvious" much more easily in retrospect. Patent attorneys and examiners spend 80% of their time arguing about what is obvious and what isn't. I can assure you that a lot more intellectual effort goes into that discussion than that provided by a random blogger after a quick look at the patent abstract.

There's also a tendency among patent critics to confuse obviousness with simplicity. Just because an invention is simple, it doesn't mean that it isn't obvious, or valuable. Indeed, the most valuable inventions are usually the simplest.

Furthermore, the patent system already additionally punishes applicants that file in bad faith. At least in the US, applicants have a duty of candour that obliges them to transmit to the USPTO all possibly relevant prior art that they may be aware of. Failure to do so makes that patent unenforceable later, even if it is nevertheless valid.

The main fault of your proposal is that it doesn't punish filing applications for obvious things. It actually punishes filing valid applications. Someone who files only crap won't be punished at all. On the other hand, to someone who generally files applications for valid inventions, misjudging just once the prior art will cost him two valid patents. Now, THAT is a perverse incentive, as well as quite likely unconstitutional in the US.

As for registers: not only are registers kept, all transfers of ownership must be registered and, in most countries only the registered owner or a (registered) exclusive licensee can start infringement actions. You appear to have a problem with patentees who transfer ownership to shell companies or litigious trolls. But is that really a problem? If famous company A transfers ownership of a patent to shell company B or nasty troll C, which immediately starts suing everybody in sight, do you believe litigants don't know what is going on and won't retaliate against A?

If there's a problem, it lies not in the patent system, which is already as transparent as it could be in matters of ownership, but in corporate law, which allows opaque shell companies. And that's a much, much wider issue...posted by Skeptic at 11:09 PM on December 11, 2011

Maybe the government's role here should be more of an insurance provider. When you obtain a patent, you take out "infringement insurance" with the government for some amount. If you find someone using that patent without a license, you file a claim.

The government then has a few options: it can try to deny the claim after discovering prior art or obviousness that was missed in the original patent approval. Or it can try to collect (in whole or in part) from the infringing party, who would then have permission to use the patent. Or it can prohibit the infringing party from using the patent, if they choose not to pay.

I haven't thought this through, really, just suggesting it off the top of my head. It seems like it would make patents less of an adversarial system and reduce their usefulness as tools for stifling competition. It would also limit the utility of submarine patents, because you won't get a $300m settlement just for being lucky enough to torpedo a Google or Apple product.posted by Riki tiki at 3:41 AM on December 12, 2011

Filing a patent application has a not-insignificant upfront cost, which in fact puts it already out of the reach of most individuals.

How many software patents are truly filed by individuals, as opposed to in some sense bearing the name of an individual but having never been anything but wholly the creature of MS or Apple or Amazon or whoever?

Furthermore, the patent system already additionally punishes applicants that file in bad faith.

This just seems difficult to reconcile to the world of software patents.posted by ROU_Xenophobe at 6:34 AM on December 12, 2011

Making an iPhone copy is not exactly innovating.

Yes, that was my boss's stance on Google/Android as well, until he started crowing about all the great new functionality his new iPad. Things like improved notifications (a direct copy of Android's notification system), photo sharing among apps, cloud syncing, and OTA updates -- things my OG Droid could do years ago.

Apparently Apple doesn't think Android is just a clone, or they wouldn't be mining Android for their improvement roadmap.

Competition is good for both consumers and companies. Locking down the competition with patents is great for short-term cash flow, but helps no one in the long run. My solution to fix all this: All IP monopolies should last for 7 years. Long enough to cash in; not too long to stifle innovation by others.posted by coolguymichael at 12:19 PM on December 12, 2011 [1 favorite]

Wow. You know, you should submit that quote. Has there ever been a company so successful that's been labeled doomed so many times? Metafilter should collect 5 bucks from any member that makes such a laughable bold claim and then pay out when Apple does actually die. We could pave the roads with gold when it's payout time, and maybe people would think before just throwing out ridiculous predictions.

I don't blame them, but I think it really sucks and I won't own a single Apple product aside from my dated apple+ certification.

That makes no sense. You don't blame them, but you want to punish them... For doing what everyone else does. Let's punish the one company that has driven innovation the most during the past 10 years. Sounds like a great plan. If people actually ever do get the apple-less tech world they'd love to see, they'll regret it after the satisfaction has subsided.

There are plenty of features that Android incorporated first and iOS picked up later, like the drop down notification bar, task switching using the home button and OTA updates. Should Google sue? No because competition is good and causes everyone try to leap-frog the other guy's last release with their next release.
posted by octothorpe at 3:36 PM

Yes, that was my boss's stance on Google/Android as well, until he started crowing about all the great new functionality his new iPad. Things like improved notifications (a direct copy of Android's notification system), photo sharing among apps, cloud syncing, and OTA updates -- things my OG Droid could do years ago.
posted by coolguymichael

Oh please. It's as if ford invented the car, and chevy copied the car but change bumper, and chevy might have copied the care BUT FORD COPIED THE BUMPER!!!

Just complete nonsense. Of course, my example is a little off, Apple didn't invent the phone. They certainly had the greatest influence on the phone as we see it today. No iPhone, no droid. The things you are comparing are not on the same level. Or as gruber puts it:

Also interesting to observe how Android phones have evolved in a decidedly-iPhone-like direction. The 2008 G1 had a hardware keyboard; a hardware up/down/left/right controller for moving the insertion point in text and navigating menus; dedicated hardware buttons for Menu, Home, Search, and Back; and SD card storage expansion. All of these things were held up by some critics as advantages against the iPhone. Today’s Galaxy Nexus has none of these things. (It still has a removable battery, though — does anyone want to take a bet that next year’s Nexus Whatever does not?) The biggest anti-iPhone difference in Android evolution is the ever-increasing size of the displays — the Galaxy Nexus’s measures 4.65 inches diagonally — and the corresponding increase in the overall size of the hardware.

The ITC rejected 9 of Apple's 10 patent claims against HTC's Android devices, enforcing only the "data tapping patent", which covers pulling up another application by tapping on a phone number or email address. Google should work around this patent fairly easily, but otherwise HTC must remove the feature by 19 April 2012.

Apple has afaik won only "fashion right" lawsuits, which competitors can trivially circumvent by changing the corners or color or whatever. Apple has effectively lost all their software patent cases because their software patents are apparently all rubbish.

I doubt the patents that HTC licenses from Microsoft are significantly stronger, but Microsoft acknowledges this software patent bullshit is only good for rent seeking, while Apple has their head stuck in a reality distortion field.posted by jeffburdges at 8:29 PM on December 20, 2011

It seems to me that Apple has created some incredibly innovative non-obvious enhancements to smartphones. Andriod seems like a blatant and obvious ripoff. I'd rather boycott Google at this point.posted by humanfont at 1:15 PM on December 27, 2011

I heard Bing stopped just copying Google's search results in the last year or so, making that possible.posted by jeffburdges at 10:03 PM on December 27, 2011

humanfront, there's a lot more injustice in what Apple and Google do to Chinese workers than in what Google did to Apple.

Anyway, if you're going to make that kind of assertion you're going to have to back it up, because from where I'm sitting Apple mostly used its market clout to add features to smart phones that should have been there years ago but stupid profit-fat cell phone companies resisted forever. Not technical innovation at all.posted by JHarris at 6:16 AM on December 28, 2011

Before iPhone every mobile phone had a keypad, a menu pointer control and a swappable battery. Touch screens depended on a stylus. How did the carriers block these now ubiquitous innovations from being brought to market sooner. Surely Motorola with its Razr and Blackberry with the Bold had incredibly good deals with carriers and had market leverage to push through changes. They didn't come up with these ideas. They just copied Apple's success.posted by humanfont at 2:41 PM on December 28, 2011

Wait a minute. A non-swapable battery is an innovation? Seriously? I love having a spare battery for my Incredible. It's one of the main reasons that I'd never own an Apple iThing. I had three iPods and the batteries all died within a year. Never again.posted by octothorpe at 8:37 PM on December 28, 2011

Nokia, Motorola, HTC, etc. all had both touch screen and stylus based phones years before the Apple released the iPhone, probably before Apple even started designing it.

There was a conventional wisdom among carriers, phone geeks, etc. that westerners wanted keys for letters, while asians wanted stylus screens for characters, but you could absolutely import touch screen phones, made by anybody except RIM afaik. Touch screen keyboards clearly suck when compared with tactile keyboards. This holds true even after all these iOS revisions, after RIM invested so much effort in trying to simulate tactile feedback, etc.

As a rule, high end phones were built for phone geeks to pushed them on businessmen. All these people cared about typing speed. And they don't lol when virginia autocorrects to vagina. You'll notice RIM still sells tactile blackberries. And gsm arena lists 94 Android phones with qwerty keyboards, including six new dual core ones.posted by jeffburdges at 10:00 PM on December 28, 2011

I said they had touch screens which required a stylus. iPhone doesn't need a stylus. The major Andriod sales leaders are the Evo, Galaxy, Nexus and Droid. None of them have a keypad. They seem so bound by Apple's formula they don't even have swappable batteries. I will also point out that RIM isn't exactly winning the smartphone wars. The Apple design had been widely copied.posted by humanfont at 12:51 AM on December 29, 2011

There were resistive screens that didn't require a stylus before the iPhone, certainly Nokia used resistive touch screens that responded well to fingers. People typed on the N770's on-screen keyboard, for example. It appears the the HTC Wallaby / O2 Xda used a touch screen without even offering a stylus way back in 2002. LG Prada used a capacitative touch screen one year before the iPhone.posted by jeffburdges at 7:31 AM on December 29, 2011

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